McCandless v. United States

Decision Date09 March 1928
Docket NumberNo. 3672.,3672.
Citation25 F.2d 71
PartiesMcCANDLESS, Commissioner of Immigration. v. UNITED STATES ex rel. DIABO.
CourtU.S. Court of Appeals — Third Circuit

George W. Coles, U. S. Atty., and Robert M. Anderson, Asst. U. S. Atty., both of Philadelphia, Pa., for appellant.

Adrian Bonnelly, of Philadelphia, Pa., for appellee.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

BUFFINGTON, Circuit Judge.

In this habeas corpus case it appears that Paul Diabo, a full-blooded Indian of the Iroquois tribe, known as the Six Nations, was born on a reservation of that tribe in the Dominion of Canada. He first came to the United States in 1912, and from then on made a number of trips to and fro until 1925. These many trips were made by reason of the fact that he worked as a structural iron worker in putting up high buildings. About February 26, 1925, he was arrested on a warrant issued on complaint of the Commissioner of Immigration for the port of Philadelphia for an alleged violation of law in entering the United States without complying with the immigration laws. After hearing, he was by the immigration authorities ordered deported, whereupon he sued out in the court below this writ of habeas corpus.

No question of contagion, moral unfitness, or pauperism is in question, and, as stated in the government's brief, "the alien is personally unobjectionable, and no deliberate intention to violate the law has been established against him. Paul Diabo appears to be a skilled structural iron worker, constantly employed at a good salary; has a bank account and property in Canada." After hearing he was discharged from custody, whereupon this appeal was taken, and the question involved is whether the immigration laws of the United States apply to members of the tribe of the Six Nations born in Canada. Enlightened possibly by the status and relations of our own native Indians with reference to our own nation, we note that the unbroken line of decision has been that they stand separate and apart from the native-born citizen, that they are all wards of the nation, and that general acts of Congress do not apply to them, unless so worded as clearly to manifest an intention to include them in their operation. United States v. Rickert, 188 U. S. 432, 23 S. Ct. 478, 47 L. Ed. 532; Elk v. Wilkins, 112 U. S. 94, 5 S. Ct. 41, 28 L. Ed. 643. In Cherokee Nation v. Georgia, 5 Pet. (30 U. S.) 17, 8 L. Ed. 25, Chief Justice Marshall said: "It may well be doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They may, more correctly, perhaps, be denominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases. Meanwhile they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian."

By article III of the Jay Treaty, made in 1794 between Great Britain and the United States, whereby the boundary line between the latter and Canada was fixed, it was provided:

"It is agreed that it shall at all times be free to his majesty's subjects, and to the citizens of the United States, and also to the Indians dwelling on either side of the said boundary line, freely to pass and repass by land or inland navigation, into the respective territories and countries of the two parties, on the continent of America (the country within the limits of the Hudson's Bay Company only excepted)."

The confederation of the Six Nations and the land held by it long preceded the Revolution. The proposed boundary line passed through this land. When the Revolution came, the Six Nations as a whole determined on neutrality, but left the constituent tribes to side with either party, which they did. Naturally the Six Nations resented the establishment of any boundary line through their territory which would restrict intercourse and free passage to their people, and remonstrance was made to the assumption of sovereignty over what they regarded, and then occupied, as their own. See Makers of Canada, vol. 3, p. 256. The situation was met by the two countries inserting the article quoted in the treaty. Evidently that article did not create the right of the Indian to pass over land actually in their possession, for, subject to the general dominant right of sovereignty claimed by all European nations based on discovery, the right of the Indian to possess the soil until he surrendered his right by sale or treaty has been recognized. In the case cited Chief Justice Marshall said: "The Indians are acknowledged to have an unquestionable, and heretofore unquestioned, right to the lands they occupy, until that right shall be extinguished by a voluntary cession to our Government."

Such being...

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